Speaker’s post: Issues and the law

Speaker’s post by the Supreme Court.
Clerk of Parliament Austin Zvoma last week said the effect of the Supreme Court judgment is that there is now a vacancy for the post of the House of Assembly Speaker held by Lovemore Moyo.
Moyo – who gave up his seat as MP for the Speaker’s position – can now no longer sit in Parliament, according to Zvoma, as he is now an ordinary member of the public.
The Attorney-General Johannes Tomana, last week, advised Clerk of Parliament Zvoma that former Speaker, Moyo, should revert back to his old status as Member of Parliament for Matobo North.
Said Tomana: “The law is clear on such matters. You do not need Tomana to interpret what the Supreme Court judgment means.”
Tomana is right, to an extent.
The Supreme Court said the election was ab initio (null and void). Ab initio means “from the beginning”, but that does not mean that Moyo has to automatically revert back to his position, two years after being in the Speaker’s role.
There are two reasons for this.
Although under Section 41(c) an MP’s seat automatically becomes vacant when elected as Speaker, “by operation of law”, the nullification of the Speaker’s post and reverting back to the MP post should all happen within a “reasonable time”.
Moyo had been in his post for over two years when the Supreme Court made its judgment, and has presided over very important parliamentary business.
It is, therefore, not useful nullifying his post now and putting him back into his MP role, because that is synonymous with nullifying all the business he has presided over in Parliament, for the last two years.
A reasonable man would agree that the “qualifying time” for the nullification and the reversal of his post, has lapsed, although there is no explicit mention of that provision in the Constitution of Zimbabwe.
Important Government and legislative business has already taken place and the Speaker has certified many pieces of legislation; including the crucial Constitution Amendment No 19 Act, which was a precursor to the formation of the inclusive Government and gave legal effect to the posts of prime minister and his deputies.
The fact that the vacancy is created automatically “by operation of law” the moment the MP becomes Speaker does not suggest that the process is reversible at any point after the election, as Dr Lovemore Madhuku has suggested. It has to be within a reasonable time frame.
Time is a crucial and a “reasonable time” factor has to be considered in this case.
The judgment was passed after what would be a “reasonable time”, so the nullification of the Speaker’s post and reversal of the MP post are legally problematic.
This means that Dr Madhuku’s suggestion that at law, Lovemore Moyo, has always been the MP for Matobo North, and never became Speaker, is true, but should consider the fact that Moyo has already exercised his Speaker role for over two years.
The consequences are that all other business carried out by Parliament, thereafter, should be nullified, including the approval of Finance Minister Tendai Biti’s Budget.
The parliament that passed the Budget, because it included Moyo as Speaker, and that parliament in retrospect (ab initio), can now be considered as having sat unconstitutionally.
The Budget and many other pieces of legislation will have to be reversed because parliamentary business was conducted, effectively, without a Speaker.
This is the paradox that those arguing on both sides will have to contend with.
In any case, AG Tomana’s role is advisory and the Clerk of Parliament does not need to take his advice.
The celebration and fanfare surrounding AG Tomana’s opinion was done in haste, without considering the implications.
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